Monday, June 24, 2013

2013 has turned out to be a major turning point in real
estate and foreclosures, as the long nightmare of 2007-2012 slowly (and in some
ways very slowly) comes to an end.
Several key developments have occurred, affecting both homeowners in
default and those hoping to sell in the future.

One drag on
the real estate market is upgraders who in the past would have outgrown their
homes and bought larger homes, but with so many houses underwater, many owners are
trapped in their existing homes. At one
point the total of underwater homes may have been substantially over 40% (and
over 50% if you factor cost of sale), but the recent rise in home prices has
substantially lowered the percentage of homes underwater. Nationally, the
decline is now below 20% of all homes, but Florida lags far behind, with nearly
38% of homes still underwater.

To address
this issue, the government extended the Home Affordable Refinance Program
(HARP), which was set to expire this year to 2015. The program allows many underwater owners to
refinance to near record low interest rates despite their lack of equity. Interest rates have climbed substantially as
the broader economy recovers, but even so, a four percent, thirty year loan is
still a bargain.

The biggest
change to the foreclosure and housing market was the approval by Governor Rick
Scott of House Bill 87 – Mortgage Foreclosures.
The bill provides major procedural and legal changes to the foreclosure
market. The bill was supported by the
banks and by most real estate attorneys, but it was opposed by consumer groups
and foreclosure defense attorneys. The bill was hotly contested, and had been
proposed and rejected in various forms for three years, as foreclosure cases
mounted in Florida courts.

The
centerpiece of the bill is the ability of banks to expedite uncontested
foreclosures. Traditionally, a bank
would have to serve a complaint, wait twenty days for service, move for and
wait to obtain a default, then schedule a summary judgment hearing, which
hearing again required an additional twenty days’ notice, and could take ninety
days to obtain a court date in front of the foreclosure judge and their bulging
case load. This meant a six to nine month
wait to get a sale scheduled, even with no defense tendered by the
homeowner. Once any defense was filed
(meritorious or not) the case would get further delayed.

To reduce
this time period, banks will be able to file, with their complaint, a request
to the court for an order to show cause why entry of final judgment should not
be entered. The order must be issued if
the complaint is proper and thereafter, the homeowner being foreclosed will
have no more than 45 days to file defenses to foreclosure. The hearing on the show cause order is heard
no later than 45 days after the complaint is filed, and if the homeowner does
not defend the action, or if the homeowner fails to raise “a genuine issue of
material fact” final judgment will be entered and the property set for sale. In addition any party to the lawsuit can
institute the show cause procedure, which will allow associations to expedite
foreclosures.

A second
change is the finality of mortgage foreclosure judgments, regardless if it is
later determined that the judgment should be reversed and the sale set
aside. In that instance the homeowner
whose home has been sold at foreclosure, and the property acquired “for value,
by a person not affiliated with the foreclosing lender or the foreclosed owner”
no longer can recover the home, but can only recover damages for the loss.

To avoid the
contentious and frequently appealed issue relating to ownership of notes and to
reestablish lost notes, new procedures will be required to establish ownership
at the time the complaint is filed. This
will include either a certification of ownership of the original note or an
affidavit regarding the lost note including documentary evidence to support the
chain of custody prior to the note being lost.

One major
change in the homeowner’s favor was also adopted. Previously, banks had five years to pursue a
deficiency judgment against homeowners on the difference between the amount
owed and the value of the property on the day of the foreclosure sale. This time period has now been shortened to
one year after the foreclosure sale’s certificate of title is issued, which
should reduce the number of deficiencies in the long run (though it may cause a
short term spike for older judgments due to a pending July 1, 2014 deadline).

The new law
takes effect July 1, 2013, and the changes should be in full affect by the end
of the year as lenders gear up to take full advantage of the new act. For abandoned homes and investor owned
properties, the process should now move faster to sale, but for homeowners with
legitimate defenses to foreclosure, the change in the law should not prevent
the full adjudication of those claims.

Michael Posner, Esq., is a partner in Ward Damon
a mid-sized real estate and business oriented law firm serving all of South
Florida, with offices in Palm Beach County.
They specialize in real estate and can assist borrowers and banks in all
loan and foreclosure matters. They can
be reached at 561.842.3000 or at

About Me

I am a Florida Board Certified Real Estate Attorney with 30+ years of residential and commercial real-estate experience.
I am an equity partner in Ward, Damon, Posner, Pheterson & Bleau, a mid-sized law firm serving all of South Florida, with three offices in Palm Beach County. Our firm specialize in and can assist in buying, borrowing and selling property throughout South Florida. I can be reached at 561.594-1452, mjposner@warddamon.com or www.warddamon.com